Archive for August, 2011
Last week in an op-ed appearing in the Los Angeles Times, Jennifer L. Mnookin, Professor of Law at the UCLA School of Law, argued that “cognitive bias” may have been influential in the recent West Memphis Three case.
In answering the question of why reversing these types of convictions proves to be so difficult, Mnookin suggested that cognitive bias, the human psychological “tendency to see what they expect to see,” affects the ability of those in the case to evaluate evidence in a disinterested manner. Mnookin distinguishes cognitive bias from other tendencies such as racial bias or personal animosity as “the habit of our brains to let the first fact we encounter guide our evaluation of the second and the third.”
In her evaluation of the case, Mnookin pointed to the early expectation of investigators that the murders were committed by members of a satanic killing cult. This first key assumption lead to the interrogation of Jessie Misskelley in order to connect Damien Echols, self-described Wiccan, who matched the preconceived profile. As investigators moved along with the case, inconsistencies in the evidence were explained away or ignored in light of these preconceived conclusions about the suspects. In other words, once the early profile was conceived, “the jump from weirdo to likely satanic cult killer was easier than it should have been.”
No doubt the task of police and investigators is extremely demanding, both physically and emotionally, especially in cases with extreme circumstances. Tensions run high, and the demand for justice in the form of a conviction is high.
But without substantial checks on cognitive bias in place, incorrect preconceptions may produce wrongful convictions and capital punishment for innocent women and men. As Mnookin makes clear, cognitive bias is an impediment to even-handed justice and partially contributed to the near-death of Mr. Echols. The irreversibility of the death penalty becomes more and more problematic considering the inherent possibility of cognitive bias and human error influencing the quality of justice.
Photo courtesy of Steve Hebert for The New York Times
Today we are mourning the death of Justice A.A. Birch, Jr., the first African-American elected to a Nashville judgeship during the era of Metro government and the first to lead the Tennessee Supreme Court. Attorney David Ewing aptly referred to Birch as “Tennessee’s Thurgood Marshall.”
We, at TADP, particularly appreciated Justice Birch’s deep concerns over the death penalty system in Tennessee. In dissenting opinions, Birch wrote in several death penalty appeals about his concerns over the method used by the court to compare capital cases. Birch consistently declined to uphold executions in death penalty cases because Tennessee lacks meaningful “proportionality review” of whether death sentences are handed down in a fair and consistent manner across the state.
In November 2010, Justice Birch served on a panel at Nashville’s First Amendment Center with a diverse group of participants (see photo above) discussing the death penalty. On that panel, he again raised his concerns about ongoing problems with the process.
TADP is deeply grateful for the life of A.A. Birch and for his commitment to equal access to justice for every citizen of our state. Our thoughts and prayers are with his family.
Read more here.
After almost two decades in prison for the murder of three little boys in West Memphis, Arkansas, Damien Echols, Jason Baldwin, and Jessie Misskelley Jr.–the West Memphis Three–were released from prison on Friday, pleading guilty while also maintaining their innocence in a bizarre plea deal made with the state.
The three agreed to an Alford plea, meaning that they acknowledge that prosecutors had evidence that could convict them, but at the same time, they maintain their innocence. The case had been unraveling for years, particularly since no DNA evidence linked the three men to the crime.
The three young boys, Christopher Byers, Stevie Branch and Michael Moore, were found in a wooded area in the poor Arkansas town of West Memphis. Their bodies appeared to have been mutilated, and their hands were tied to their feet. It was a gruesome crime that dominated the news. As a college student in Memphis at the time, I remember the coverage well–the sweet faces of those little boys on the television juxtaposed by the sullen long-haired teenagers whose ringleader was named Damien.
Jessie Miskelley, Jr. confessed to the crime and implicated Echols and Baldwin after a nearly 12-hour police interrogation. His confession diverged in significant details, like the time of the murders, with the facts known by the police. Misskelley later recanted.
Last November, the Arkansas Supreme Court ruled that there was enough evidence to merit a hearing in order to determine whether a new trial was needed. The hearing was scheduled for this December. With a possible new trial in the works, prosecutors moved to make a deal.
Even some of the victims’ families now believe the men are innocent, including John Mark Byers, the father of Christopher Byers. He said, “It’s a total injustice. These three men are being made to plead guilty to something they didn’t do.”
The prosecuting attorney, Scott Ellington, said in an interview that the state still considered the men guilty and that, new DNA findings notwithstanding, he knew of no current suspects. “We don’t think that there is anybody else,” Mr. Ellington said, declaring the case closed.
The case is now closed. But what about the families of the three little boys?
These families have suffered the murder of a child and were told that the men responsible were in prison for life and at least one would face the death penalty. Now they find that these men weren’t responsible after all these years of suffering and all the trips to court. For these families, the death penalty has turned out to be nothing but a false promise, and now the real killers will likely never be brought to justice.
This case, with all its tragedy, highlights yet again why we cannot continue to have the death penalty. Our current system is broken and will never be able ensure that we get it right 100% of the time. An attorney for one of the West Memphis Three stated that for every group of defendants that get some attention paid to them, there are 100 who are innocent who don’t have the legal and financial support they need to have their cases properly reviewed.
This system has served no one in this case. No one. With millions of dollars wasted, three young men have spent 18 years in prison and on death row for something the evidence demonstrates that they didn’t do while the families of these murdered children are now told the case is closed.
When do we finally let go of the death penalty and focus on public policies that actually prevent crime, seeking to not simply to maintain a conviction but to find the truth.
Regardless of what we believe about the use of death penalty, we can agree that the very backbone of our criminal justice system rests on the tenet that anyone who is charged with a crime should receive a fair and impartial trial. We also trust that juries, who are asked to make life and death decisions about their fellow citizens, would, at the very least, be provided all the pertinent facts available in order to make the most informed decision possible, particularly given the stakes involved.
USA Today has uncovered yet another death penalty case out of Memphis where it appears that crucial evidence was not turned over to defense attorneys, and therefore, never heard by the jury: the case of Michael Rimmer.
In 1997, Ricci Ellsworth, a 45 year old mother of two, vanished during her late shift at a Memphis Inn. Her body was never found. Her former boyfriend, Michael Rimmer–who had beaten, raped, and threatened to kill Ellsworth in the past–was tried, found guilty, and sentenced to death for her murder. He is on death row today.
Though it seems rather cut and dry, there is just one problem. An eyewitness, Army Sergeant James Darnell, pulled into the motel parking lot about the time that Ellsworth likely disappeared. He saw a man standing by a sedan in the parking lot with the trunk open. Darnell held the door open for the man, who he recalls seemed drunk, and they entered the reception area together. Darnell did not see Ellsworth in the lobby but instead saw a second man in the clerk’s office handing cash through the window to the man who had followed Darnell inside. Both men were bleeding from the knuckles with cuts so bad that Darnell thought at least one of them would need stitches. He called police after seeing a report about Ellsworth on the news. The police showed him photographs. He couldn’t identify the man in the clerk’s office but easily identified the other man.
The other man was not Michael Rimmer but Billy Wayne Voyles, for whom police were already searching. Voyles had been convicted of attempted manslaughter after stabbing someone outside a Memphis bar during a robbery and had stopped checking in with his probation officer. He was located in Arkansas and interviewed for an hour by Memphis police.
What happens next goes to the heart of the matter.
The U.S. Supreme Court has said since 1963 that the government has a constitutional duty to tell defendants about evidence that could help them prove their innocence or challenge their accusers. This is a basic right and the system cannot work properly if this does not happen. However, in this case, defense attorneys were never told about Billy Wayne Voyles. In fact, the Shelby County prosecutor told Rimmer’s defense attorneys at least twice that investigators had no exculpatory evidence. During the sentencing hearing that put Rimmer on death row, defense attorneys specifically asked the lead detective on the case, Robert Shemwell, whether Darnell had been able to identify anyone. Shemwell said incorrectly that Darnell recognized Rimmer but later corrected himself saying that Darnell had not identified anyone. Though eyewitness indentification has been shown to be faulty and cannot be exclusively relied upon in such cases, the issue here is not whether the identification was correct but that the defense was never told about it.
And this case comes on top of other death penalty cases from Shelby County where evidence was not turned over to defense attorneys, including the cases of Gaile Owens and Gary Cone, both of whom spent over 20 years on death row before getting new sentences. Owens’ execution date was rapidly approaching when Governor Bredsen finally intervened and reduced her sentence, saving her life.
In 2008 in the Owens’ case, a federal appeals court judge took the Shelby County Prosecutors’ office to task for a “set of falsehoods” that was “typical of the conduct of the Memphis district attorney’s office.” The very next year the U. S. Supreme Court ordered the federal court to review the case of Gary Cone, who also was sentenced to death in Shelby County, because the DA did not turn over evidence that could have mitigated a death sentence for Cone.
Since roughly 35% of the cases on Tennessee’s death row come from this one county, Tennesseans should be concerned. Regardless of one’s feelings about Michael Rimmer and what he deserves, the issue now is about the system and if it can be trusted. Attorneys on either side of the equation do not get the luxury of making their own rules. Everyone should have access to an equal playing field when going to trial, particularly when lives are at stake, and juries should have confidence that they are making the most informed decision that they can. Teresa Ciarloni, a juror on the Rimmer case, said that the new evidence, “Would have put doubt in our minds, I’m sure.”
The issue uncovered by USA Today only highlights the central problem with the death penalty in Tennessee and around the country. The system is broken and cannot be trusted to decide who lives and who dies period. The death penalty, a punishment in which there is no room for an error, exists within a system fraught with error.
No one wants dangerous people out on the streets. This is not about accountability or public safety. We can have both without the death penalty. This is about basic fairness, access to equal justice, and ensuring that innocent people are not executed in our pursuit of the guilty. Ricci Ellsworth’s killer should be held accountable for this heinous crime, but the jury should have been given all the facts to make that determination. They weren’t, and therefore, a miscarriage of justice may have occurred which benefits no one and may have let a killer go free.
Read the full story.
Photo by Exothermic
CNN was one of many news agencies around the world that followed the Paul House case as it made its way to the U.S. Supreme Court in 2006 and then back to Federal District Court where his conviction and death sentence were finally overturned in 2007. House was released on bail in July 2008 as he awaited retrial, but all charges against him were ultimately dropped, and he became a free man in 2009.
TADP worked with Joyce House for years in our “Free Paul House” campaign to raise public awareness about her son’s case and to provide a forum for her to share his story. I was there in 2008 when Paul emerged from the DeBerry Special Needs Facility in Nashville, and what I saw was a very sick, emaciated man, with rotting teeth and thinning hair, who was deteriorating both physically and emotionally after serving nearly 23 years on Tennessee’s death row, 13 of which he suffered with multiple sclerosis.
As CNN notes in this update, Paul House is a new man today. He has put on weight, engages in physical therapy, has new teeth, and is more and more comfortable around people. In fact, he and his mother have made presentations to a variety of groups for TADP since his release and meet annually with legislators to share his story and to ask for repeal of the death penalty. Though such outings tire him, he wants Tennesseeans to have a personal encounter with one of the 138 people nationwide who could have easily been executed for crimes that the evidence now indicates they didn’t commit. It is hard to look Paul House in the eye and tell him that Tennessee needs the death penalty.
Cameron Todd Willingham was executed in Texas in 2004 for an arson fire that killed his three children. Investigations by prominent forensic scientists have discredited the evidence of arson presented at trial. Numerous media outlets, including CNN and Newsweek, have featured the Willingham case, particularly focusing on the evidence of the flawed science used to convict him.
In 2008, the Innocence Project filed a complaint with the Texas Forensic Science Commission alleging professional negligence by arson investigators in the case. The Commission issued a report finding that the original arson investigators relied on now-outdated science in concluding that the fire was intentionally set. Since the panel took on the Willingham case in 2006, questions have been raised about its authority to assess the reliability of forensic evidence. Governor Rick Perry delayed the panel’s work in 2007 when he replaced three members of the commission, before it planned to hear expert testimony.
Now Texas Attorney General Greg Abbott has ruled that the FSC does not have authority to review evidence regarding the possible innocence of Willingham. Abbott’s ruling states that evidence tested or offered into evidence prior to September 1, 2005 is beyond the scope of the FSC’s legal jurisdiction.
In a statement released by the Innocence Project, Co-Director Barry Scheck said, “We are disappointed in the Attorney General’s ruling…. We believe the reasoning of the opinion is wrong and contrary to the clear intention of the legislature when it formed the Commission. We urge the legislature to correct this injustice and fully empower the Commission to investigate all matters that could help prevent wrongful convictions.”
What is the goal here? Protecting the flawed process or discerning the truth? Nothing can bring Cameron Todd Willingham or his children back, but at the very least, all the evidence should be heard, regardless of how painful the outcome.